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FEDERAL COMMON LAW AND THE COURTS’
REGULATION OF PRE-LITIGATION
PRESERVATION
Joshua M. Koppel*
INTRODUCTION ....................................................................................................... 102 I. THE CASE LAW CONCERNING THE AUTHORITY OF FEDERAL COURTS TO
REGULATE THE PRE-LITIGATION PRESERVATION OF EVIDENCE ....................... 104 II. POSSIBLE SOURCES OF AUTHORITY TO SANCTION PRE-LITIGATION
SPOLIATION ....................................................................................................... 108 A. The Rules Enabling Act .............................................................................. 108 B. Interstitial Common Lawmaking Power ..................................................... 109 C. Procedural Common Law as an Enclave of Intense Federal Interest ........ 111 D. Article III Grant of Power to the Federal Courts to Prescribe
Procedural Rules ........................................................................................ 112 E. Sources of Authority: Conclusions ............................................................. 114 III. THE CHOICE BETWEEN FEDERAL AND STATE PRESERVATION LAW ................. 115 A. The Application of Federal Preservation Law in Diversity Cases ............. 116 B. The Incorporation of State Law as Federal Common Law ........................ 118 1. Uniformity ........................................................................................... 120 2. Federal Interests .................................................................................. 121 3. Reliance Interests and Vertical Uniformity ......................................... 122 IV. FEDERAL RULEMAKING AS AN ALTERNATIVE TO COMMON LAWMAKING ....... 124 CONCLUSION .......................................................................................................... 127 * Law Clerk to the Honorable Norma L. Shapiro, United States District Court for the Eastern
District of Pennsylvania. J.D., 2012, University of Pennsylvania; B.A., 2008, Brandeis
University.
A previous version of this Article won the Henry C. Loughlin Award for a paper on
legal ethics, awarded by the University of Pennsylvania Law School faculty, and the 2011
James William Moore Federal Practice Award from LexisNexis.
The Author would like to thank Judge Anthony Scirica and Professors Catherine
Struve, Geoffrey C. Hazard, Jr., and Stephen Burbank for their invaluable assistance and
feedback on earlier drafts.
101
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INTRODUCTION
The unanimous view of the federal courts is that federal law imposes upon
a party a duty to preserve relevant evidence from the time that the party can
reasonably anticipate litigation. The courts regularly rule on the scope of that
duty and impose sanctions for spoliation of evidence that occurs after that duty
to preserve arises. The costs of the required preservation of evidence can be
staggering and the potential sanctions for spoliation can determine the outcome
of a case. Yet the source of the federal courts’ authority to impose this federallaw duty of preservation and to craft sanctions for spoliation that occurs before
a federal action is commenced is uncertain.
Federal Rule of Civil Procedure 37 gives federal courts power to sanction a
party that violates a discovery order. Furthermore, it is well accepted that the
federal courts have authority to protect the integrity of their proceedings by
sanctioning parties who spoliate evidence after an action has commenced.1
Courts have less to rely on, however, when they create a duty that arises prior
to the invocation of the court’s jurisdiction.
Nevertheless, the federal courts recognize a common law duty of
preservation that arises before a claim is filed and assert an inherent power to
impose sanctions for the breach of that duty.2 This Article seeks to clarify the
authority of federal courts to create federal common law in this area by
examining different approaches that bear on whether or how courts should
regulate pre-litigation preservation duties. In Part I, this Article looks to the
case law to see how courts have exercised their asserted power to regulate prelitigation preservation and how they have justified that exercise. Courts have
generally relied on their inherent authority to regulate their proceedings.
However, rather than clarifying the federal courts’ authority, such reliance only
begs the question of what source of power grants courts this inherent authority
to regulate pre-litigation conduct. Part II, therefore, examines possible sources
for the courts’ authority to create a pre-litigation duty to preserve evidence and
to sanction for breach of that duty. Continuing under the assumption that the
federal courts have the power to create common law in this area, Part III
1. See, e.g., Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 106-07
(2d Cir. 2002) (“Even in the absence of a discovery order, a court may impose sanctions on a
party for misconduct in discovery under its inherent power to manage its own affairs.”); cf.
Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (“It has long been understood that
‘[c]ertain implied powers must necessarily result to our Courts of justice from the nature of
their institution,’ powers ‘which cannot be dispensed with in a Court, because they are
necessary to the exercise of all others.’” (alteration in original) (quoting United States v.
Hudson, 11 U.S. (7 Cranch) 32, 34 (1812))).
2. See Pension Comm’n of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685
F. Supp. 2d 456, 466 (S.D.N.Y. 2010) (“The common law duty to preserve evidence relevant
to litigation is well recognized. The case law makes crystal clear that the breach of the duty
to preserve . . . may result in the imposition of sanctions by a court because the court has the
obligation to ensure that the judicial process is not abused.”).
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examines whether, in imposing a preservation duty, federal courts should create
a federal standard or should apply the preservation law of the state in which
they sit. Potential answers to this question are analyzed separately with regard
to federal courts exercising diversity jurisdiction and federal courts exercising
federal-question jurisdiction. Lastly, Part IV considers whether common
lawmaking is the appropriate device through which this law should be
developed, or whether litigants would be better served if the Supreme Court
promulgated Federal Rules governing the matter.
It is important to note a few points at the outset of this discussion. The first
is that the exercise of a court’s inherent power is an instance of federal common
lawmaking. Thus, an exercise of the court’s inherent power must be justified
the same way that a federal court must justify its creation of common law postErie—by relying on some positive grant of lawmaking power. Similarly, a
federal court is limited in its use of its inherent power by the restrictions that
Erie places on the application of federal common law in diversity cases.
Notably, courts have claimed that the common law grants them the power to
impose spoliation sanctions both in cases arising under federal law and those
arising under state law.3 Second, the federal government is competent to make
a rule regarding pre-litigation preservation of evidence. At the very least, the
combination of Article III of the Constitution and the Necessary and Proper
Clause gives Congress the power to regulate the preservation of evidence.4
Congress has not exercised this power, however, and the federal courts have
instead created common law in this area. Third, it is clear that this federal
common law is not preemptive—state courts follow state law in determining
when the duty of preservation is triggered and what sanctions might be
warranted for pre-litigation spoliation. Thus, the federal courts have created
federal common law in an area that is within federal competence to regulate.
This common law is limited by the fact that it is not preemptive, applying only
in federal courts. But it is expansive in that this federal common law applies in
both federal-question and diversity cases. While many judge-made rules of
procedure follow this pattern, the duty of preservation is exceptional (and
perhaps unique) because it governs pre-litigation conduct.
3. See, e.g., Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 449 (4th Cir. 2004)
(noting that even when a federal court sits in diversity jurisdiction “the decision to
impose . . . a sanction [for spoliation of evidence] is governed by federal law”).
4. See Hanna v. Plumer, 380 U.S. 460, 472 (1965) (“[T]he constitutional provision
for a federal court system (augmented by the Necessary and Proper Clause) carries with it
congressional power to make rules governing the practice and pleading in those courts,
which in turn includes a power to regulate matters which, though falling within the uncertain
area between substance and procedure, are rationally capable of classification as either.”).
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I.
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THE CASE LAW CONCERNING THE AUTHORITY OF FEDERAL COURTS TO
REGULATE THE PRE-LITIGATION PRESERVATION OF EVIDENCE
The federal courts have unanimously held that federal law governs the
question of when a party’s obligation to preserve evidence is triggered.5
Furthermore, every federal court to have confronted the issue has held that the
duty of preservation arises prior to the initiation of litigation.6 In a common
formulation of this rule, the Court of Appeals for the Second Circuit has stated
that “[t]he obligation to preserve evidence arises when the party has notice that
the evidence is relevant to litigation or when a party should have known that
the evidence may be relevant to future litigation.”7 The federal courts also
agree that federal law governs the determination of whether or which sanctions
are appropriate when a party breaches its duty of preservation.8
When federal courts justify their authority to impose sanctions for prelitigation spoliation, they often consider Rule 37 as a source of such authority.9
But, for the most part, the courts have held that Rule 37 is inapplicable in such
cases.10 Rule 37(b) allows a court to impose sanctions where a party “fails to
5. See Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) (“We
conclude . . . that a federal law of spoliation applies because . . . the power to sanction for
spoliation derives from the inherent power of the court, not substantive law.”); Adkins v.
Wolever, 554 F.3d 650, 651-52 (6th Cir. 2009) (en banc) (overruling circuit precedent to
hold, like “every other federal court of appeals to have addressed the question,” that federal
law governs the imposition of spoliation sanctions); Chrysler Realty Co. v. Design Forum
Architects, Inc., No. 06-CV-11785, 2009 WL 5217992, at *2-3 (E.D. Mich. Dec. 31, 2009)
(citing Adkins to apply federal law to determine the trigger for the duty to preserve
evidence).
6. See Advisory Committee on Civil Rules, Agenda Book, November 7-8, 2011, at
101-07,
available
at
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/
Agenda%20Books/Civil/CV2011-11.pdf (citing case law from nearly every circuit holding
that the duty to preserve evidence arises when litigation is foreseeable, even before a claim is
filed); Memorandum from Andrea Kuperman to the Discovery Subcommittee, at 5-17 (Sept.
23, 2010), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Dallas
MiniConf_Materials/Case%20Law%20on%20Elements%20of%20a%20Potential%20Preser
vation%20Rule.pdf (“The courts generally require that a party begin preservation efforts
once it knows or should know that that evidence is likely to be relevant to pending or future
litigation.”).
7. Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir. 2001).
8. See Adkins, 554 F.3d at 651-52.
9. When federal courts sanction parties for the spoliation of evidence that occurred
during the pendency of litigation, they most often rely on Rule 37 as a basis for such power.
Dan H. Willoughby, Jr., et al., Sanctions for E-Discovery Violations: By the Numbers, 60
DUKE L. REV. 789, 798-802 (2010). The second most common basis that courts cite for this
authority is their inherent power. Id.
10. A few older opinions have relied on Rule 37 as a source of authority for
sanctioning the pre-litigation spoliation of evidence. See, e.g., Alliance to End Repression v.
Rochford, 75 F.R.D. 438, 440 (N.D. Ill. 1976) (citing defendant’s pre-litigation destruction
of documents as a factor in the court’s decision to impose sanctions under Rule 37).
However, more recent opinions have abjured reliance on Rule 37 for such sanctions.
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obey an order to provide or permit discovery.”11 A party who destroys
evidence prior to the start of litigation, however, is normally not subject to any
relevant court order.
Most courts have held, therefore, that Rule 37 does not grant a court
authority to impose sanctions for pre-litigation conduct:
Rule 37 . . . is applicable to the “normal” disputes, delays, or difficulties
occurring in civil litigation. . . . Rule 37 enables a court to punish the litigant
who has not responded adequately to discovery requests of an opposing party
or to orders of the court compelling discovery. Rule 37 does not, by its terms,
address sanctions for destruction of evidence prior to the initiation of a lawsuit
or discovery requests.12
Moreover, a number of courts have held that Rule 37 is not a source of
authority for sanctions for the spoliation of evidence that occurs even during
the pendency of litigation. The Court of Appeals for the Ninth Circuit has
strictly construed the language of Rule 37(b) and enforced the “requirement
that there be some form of court order.”13 Thus, unless there was a court order
to preserve or produce evidence, some courts will not rely on Rule 37 to
sanction a party that destroys evidence.14
Recognizing that there is no rule or statute that covers this situation, courts
have generally held that the duty to preserve evidence prior to litigation arises
from the common law, and have relied on their inherent authority to sanction
for breach of that duty.15 In Pension Committee of the University of Montreal
Pension Plan v. Banc of America Securities, LLC, Judge Shira Scheindlin
attributed this duty to the common law, stating that “[t]he common law duty to
preserve evidence relevant to litigation is well recognized.”16 In Capellupo v.
11. FED. R. CIV. P. 37(b)(2)(A).
12. Capellupo v. FMC Corp., 126 F.R.D. 545, 551 n.14 (D. Minn. 1989).
13. Unigard Sec. Ins. Co. v. Lakewood Eng’g & Mfg. Corp., 982 F.2d 363, 368 (9th
Cir. 1992).
14. See Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494, 505-06 (D. Md. 2009)
(contrasting the court’s inherent power to impose spoliation sanctions with its Rule 37 power
that is applicable “if the spoliation violates a specific court order or disrupts the court’s
discovery plan”).
15. The Advisory Committee Note to Rule 37(f) also recognizes that a preservation
obligation might arise from the common law. FED. R. CIV. P. 37(f) advisory committee’s
note (2006) (“A preservation obligation may arise from many sources, including common
law, statutes, regulations, or a court order in the case.”). The little scholarly work that exists
regarding pre-litigation preservation obligations has not identified a source for the courts’
claimed inherent authority. See A. Benjamin Spencer, The Preservation Obligation:
Regulating and Sanctioning Pre-Litigation Spoliation in Federal Court, 79 FORDHAM L.
REV. 2005, 2006-07 (2011) (accepting without further justification that “the ordinary prelitigation duty to preserve is a consequence of the inherent authority of courts to sanction
parties who culpably permit the loss or destruction of relevant evidence prior to the initiation
of an action.”).
16. 685 F. Supp. 2d 456, 466 (S.D.N.Y. 2010). See also Victor Stanley, Inc. v.
Creative Pipe, Inc., 269 F.R.D. 497, 519-21 (D. Md. 2010) (“[T]he duty to preserve relevant
evidence is a common law duty, not a rule-based duty . . . . The common law imposes the
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FMC Corp., the United States District Court for the District of Minnesota
imposed harsh sanctions on a party that had intentionally destroyed evidence
when it had notice of potential litigation.17 In doing so the court “relie[d] on its
inherent power to regulate litigation, preserve and protect the integrity of
proceedings before it, and sanction parties for abusive practices.”18
The federal courts derive support for this inherent power from two
Supreme Court cases in particular: Roadway Express, Inc. v. Piper19 and
Chambers v. NASCO, Inc.20 In Roadway Express, the Supreme Court
reaffirmed the “‘well-acknowledged’ inherent power of a court to levy
sanctions in response to abusive litigation practices.”21 The Court identified the
inherent powers of the courts as “those which ‘are necessary to the exercise of
all others.’”22 Notably, though, the Supreme Court did not address the question
of whether a court may impose sanction for abusive pre-litigation conduct.
In Chambers, the trial court had found that the defendant, Chambers, had
abused the judicial process in several ways. Once Chambers received notice
that NASCO would be filing suit against him, he sought to put disputed
property beyond the reach of the court by transferring ownership to a trust.23
During the pendency of the action Chambers refused to allow NASCO to
inspect his company’s corporate records, in defiance of a preliminary
injunction, and he filed meritless motions and pleadings to delay the
proceedings.24 The district court found that neither Rule 11 nor 28 U.S.C. §
1927 affirmatively authorized sanctions for much of Chambers’ conduct and
instead imposed sanctions relying on its inherent power.25 The Supreme Court
affirmed the order of the lower court and held that “the sanctioning scheme of
the statute and the rules [do not] displace[] the inherent power to impose
sanctions for [certain] bad-faith conduct.”26 The Court held that the sanctions
had not been imposed for Chambers’ breach of substantive law, but because of
his conduct in and against the court.27 Thus, although this was a diversity
action, the Erie doctrine was not implicated and federal (common) law
governed the district court’s decision to impose sanctions.28
obligation to preserve evidence from the moment that litigation is reasonably anticipated.”).
17. 126 F.R.D. 545, 553-54 (D. Minn. 1989).
18. Id. at 551 (citing Roadway Express, Inc. v. Piper, 447 U.S. 752, 764-67 (1980)).
19. 447 U.S. 752 (1980).
20. 501 U.S. 32 (1991).
21. Roadway Express, 447 U.S. at 765.
22. Id. at 764 (quoting United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812)).
See Chambers, 501 U.S. at 43-46 (citing cases that outline the scope of the inherent power of
the federal courts).
23. Chambers, 501 U.S. at 36-37.
24. Id. at 38.
25. Id. at 41-42.
26. Id. at 46.
27. Id. at 54.
28. Id. at 55.
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District courts frequently cite Chambers when asserting inherent power to
sanction pre-litigation spoliation.29 However, in claiming this case as authority
to impose sanctions for pre-litigation conduct, the courts ignore the fact that in
Chambers the Supreme Court focused on Chambers’ conduct following the
initiation of litigation. In his dissent, Justice Antonin Scalia points out that the
district court’s opinion seemed to imply that in imposing sanctions it
considered Chambers’ bad-faith breach of contract that gave rise to the
litigation.30 Justice Scalia notes that even the majority seemed to have a
problem with the district court imposing a common law sanction on Chambers’
“prelitigation primary conduct”31 and that this is why the majority
recharacterized the sanctions as being imposed for conduct that occurred
“throughout the course of the litigation.”32 Thus, while the Supreme Court in
Chambers clearly held that a court has inherent power to sanction a party for
bad-faith conduct during the course of litigation, its characterization of the
sanctionable conduct suggests that a court does not have inherent power to
sanction pre-litigation primary conduct. The question of whether a court may
sanction pre-litigation conduct relating to the proceeding (such as pre-litigation
spoliation of evidence), as opposed to pre-litigation primary conduct, was not
addressed or answered by the Court.
When federal courts sanction a party for the destruction of evidence that
occurred before any claim was filed, they punish a party for conduct that
occurred before the jurisdiction of the federal court was invoked. In Chambers,
the Court authorized sanctions that punished a party for “fraud . . . perpetrated
upon the court” or for “tampering with the administration of justice” in a
manner that involved “a wrong against the institutions.”33 In that case,
Chambers’ conduct clearly fit that description. However, it is not clear that prelitigation conduct can constitute a wrong against an institution whose
jurisdiction over the matter has yet to be invoked. The Court’s reasoning in
Chambers might not apply to sanctions for pre-litigation spoliation.
Lower courts stand on firm ground when they cite Supreme Court
29. See, e.g., Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001);
Pension Comm’n of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F. Supp. 2d
456, 466 & n.24 (S.D.N.Y. 2010) (“The case law makes crystal clear that the breach of the
duty to preserve, and the resulting spoliation of evidence, may result in the imposition of
sanctions by a court because the court has the obligation to ensure that the judicial process is
not abused.”) (citing Chambers, 501 U.S. 32).
30. Chambers, 501 U.S. at 73 (Scalia, J., dissenting).
31. Id.
32. Id. at 54-55 & n.17 (majority opinion) (observing that the district court noted “the
allegedly sanctionable acts were committed in the conduct and trial of the very proceeding in
which sanctions were sought, and thus the sanctions imposed applied only to sanctionable
acts which occurred in connection with the proceedings in the trial Court”) (alterations
omitted) (citations omitted) (quotation omitted).
33. Id. at 44 (quoting Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238,
245 (1944)).
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precedent for the assertion that courts possess inherent power to sanction
abusive litigation practices that occur during the pendency of a claim. But they
have generally failed to acknowledge that this power might not grant them the
authority to impose sanctions for pre-litigation conduct. The Supreme Court
has not addressed the question of whether the inherent power of the courts to
regulate litigation conduct might be extended to reach conduct occurring before
the jurisdiction of the courts is invoked.
II.
POSSIBLE SOURCES OF AUTHORITY TO SANCTION PRE-LITIGATION
SPOLIATION
Federal courts might better be able to justify their reliance on their inherent
powers to regulate pre-litigation conduct if they can identify the source of those
inherent powers. Alternatively, courts may be on firmer ground in regulating
pre-litigation preservation if they can claim the power to do so through some
extrinsic source. This Part considers a number of different possible bases for
courts’ authority to regulate pre-litigation preservation and to sanction prelitigation spoliation.
A. The Rules Enabling Act
Courts may be able to rely on some statutory grant of power in crafting
rules to govern pre-litigation preservation. Because there is no statute that
directly addresses this matter, the most likely source of such authority is the
Rules Enabling Act, which contains a broad grant of rulemaking authority to
the federal courts.
Congress provided in 28 U.S.C. § 2071(a), “[t]he Supreme Court and all
courts established by Act of Congress may from time to time prescribe rules for
the conduct of their business.”34 However, Section 2071(b) requires that such
rules “be prescribed only after giving appropriate public notice and an
opportunity for comment.”35 Section 2071 does not give courts authority to
formulate rules through their case law, but rather through rulemaking.36
Section 2072 authorizes the Supreme Court to “prescribe general rules of
practice and procedure and rules of evidence for cases in the United States
district courts.”37 Section 2073, though, sets out detailed procedures that the
Court must follow in promulgating such rules,38 thus dispelling any argument
34. 28 U.S.C. § 2071(a) (2006).
35. Id. § 2071(b) (2006).
36. See Amy Coney Barrett, Procedural Common Law, 94 VA. L. REV. 813, 836
(2008) (“[R]ead in light of the subsections that follow it, Section 2071(a)’s statutory grant
clearly authorizes federal courts to ‘prescribe rules’ through the process of rulemaking, not
adjudication.”).
37. 28 U.S.C. § 2072(a) (2006).
38. See id. § 2073 (2006). Section 2073(e) contains an escape clause, providing that
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that the Supreme Court utilized its power under the Rules Enabling Act in
Chambers and similar cases by authorizing the lower courts to sanction for
abusive litigation practices. Furthermore, Section 2074 requires that before any
rules authorized under Section 2072 become effective, the Supreme Court must
send the proposed rules to Congress.39 Section 2072 does not mean to authorize
the development of procedural rules through common law processes.
Federal Rule of Civil Procedure 83 authorizes judges to “regulate practice
in any manner consistent with federal law.”40 This rule seems to authorize
judges to adopt procedures in the absence of any governing federal law or rule.
However, the rule was meant to allow courts to issue standing orders and
internal directives,41 rather than to authorize judges to create generally
applicable rules through common law processes.42 Furthermore, to the extent
that Rule 83 does authorize federal judges to create common law, the rule may
be invalid because it exceeds the grant of authority that the Rules Enabling Act
bestows on the Supreme Court.43 While the Rules Enabling Act may authorize
the Supreme Court to promulgate a rule imposing a pre-litigation duty to
preserve evidence,44 the Court has not done so.
B. Interstitial Common Lawmaking Power
The federal courts have not properly exercised any rulemaking authority
that they might have under the Rules Enabling Act to create a pre-litigation
duty of preservation and to establish sanctions that will be imposed for breach
of that duty. However, this does not mean that the courts’ power to create law
in this area does not stem from the Federal Rules of Civil Procedure. More
specifically, the courts may have authority to create such a duty and to sanction
for its breach through their role in interpreting and filling the interstices of the
Federal Rules of Civil Procedure. Once the Supreme Court has properly
promulgated Federal Rules under the Rules Enabling Act, those Rules have the
“[f]ailure to comply with this section does not invalidate a rule prescribed under section
2072.” 28 U.S.C. § 2073(e) (2006). There is no similar escape clause for the procedures
mandated by Section 2074, however.
39. 28 U.S.C. § 2074 (2006).
40. FED. R. CIV. P. 83(b).
41. See FED. R. CIV. P. 83(b) advisory committee’s note (“The last sentence in Rule 83
has been amended to make certain that standing orders are not inconsistent with the Federal
Rules or any local district court rules.”).
42. See Barrett, supra note 36, at 837 & n.71 (“Despite the breadth of the language, it
is not at all clear that either Federal Rule of Civil Procedure 83(b) or Federal Rule of
Appellate Procedure 47(b) authorizes procedural common law in the sense of generally
applicable rules worked out by judges on a case-by-case basis.”).
43. See Stephen B. Burbank, Interjurisdictional Preclusion, Full Faith and Credit and
Federal Common Law: A General Approach, 71 CORNELL L. REV. 733, 773-74 (1986)
(noting that “Federal Rules cannot validly provide for the creation of federal common law”).
44. See infra Part IV.
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force of law like any act of Congress.45 Although the federal courts cannot
create valid Federal Rules outside of the process designated by the Rules
Enabling Act, the courts can create federal common law filling the interstices
of the Federal Rules just like they do with regard to statutes enacted by
Congress.46 The Federal Rules can also act as a source of federal common law
by expressing policies in areas that are not directly covered by the Rules.47
As already discussed, the federal courts have generally agreed that Rule 37
does not expressly provide them with the power to sanction parties for prelitigation spoliation. However, Rule 26 and various other Federal Rules lay out
a number of discovery-related duties, which might act as a source for federal
common law. Rule 26(b) creates a general rule that makes a broad swath of
material relating to litigation discoverable.48 Rule 27 evinces a policy of
perpetuating evidence for use in litigation.49 And Rule 34 provides for the
discovery of documentary evidence.50 Although Rule 37 by its terms does not
deal with pre-litigation preservation or destruction of evidence, it allows courts
to order a discovery response and to sanction a party’s failure to comply with
such an order.51 Together with the statement in Rule 1 that all of the Federal
Rules are to be “construed and administered to secure the just, speedy, and
inexpensive determination of every action and proceeding,”52 these Rules
create a substantial body of procedures and policies surrounding discovery in
the federal courts.
A federal court might reasonably find that in order to effectuate the
detailed discovery scheme codified in the Federal Rules, efforts to preserve
evidence must begin even before an action is filed. Furthermore, a court might
find that if parties are allowed to spoliate evidence prior to the commencement
of litigation, the goal of ensuring free access of both parties to all relevant
information, as embodied in the Federal Rules, would be undermined. In
45. Cf. Hanna v. Plumer, 380 U.S. 460, 473-74 (1965) (noting that Congress exercises
its power over federal procedure through its delegation to the Supreme Court in the Rules
Enabling Act).
46. See Burbank, supra note 43, at 773-74 (“In authorizing the Court to promulgate
Federal Rules, Congress must have contemplated that the federal courts would interpret
them, fill their interstices, and, when necessary, ensure that their provisions were not
frustrated by other legal rules.”); Thomas W. Merrill, The Common Law Powers of Federal
Courts, 52 U. CHI. L. REV. 1, 58 n.247 (1985) (“[T]here is no reason why preemptive
lawmaking could not also be based on the need to preserve or effectuate policies articulated
by federal courts pursuant to delegated lawmaking. In other words, there is no reason why
preemptive lawmaking cannot ‘piggyback’ on top of delegated lawmaking.”); Cf. Am. Pipe
& Constr. Co. v. Utah, 414 U.S. 538, 553-54 (1974) (interpreting the federal rules so as to
protect the policies underlying Rule 23).
47. Burbank, supra note 43, at 774.
48. FED. R. CIV. P. 26(b)(1).
49. Id. R. 27.
50. Id. R. 32.
51. Id. R. 37.
52. Id. R. 1.
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interpreting and effectuating the Federal Rules, therefore, a federal court might
legitimately create a pre-litigation duty of preservation as a matter of federal
common law in the interstices of the Rules.
C. Procedural Common Law as an Enclave of Intense Federal Interest
One of the standard justifications of substantive common law is that there
are certain enclaves of intense federal interest in which the Constitution
impliedly requires that federal law govern.53 For example, in Southern Pacific
Co. v. Jensen, the Supreme Court held that maritime actions must be governed
by federal law.54 In the absence of federal legislation on the matter, federal
courts would develop “general maritime law.”55 Similarly, in Clearfield Trust
Co. v. United States, the Supreme Court held that the rights and duties created
by the commercial paper of the United States are a matter of national concern
governed by federal law.56 Because Congress had not created a governing law,
the Supreme Court held that “it is for the federal courts to fashion the
governing rule of law according to their own standards.”57 Thus, federal courts
properly make federal common law in areas of national concern.
Similarly, the procedure of the federal courts is a matter of exclusive
federal control.58 In Wayman v. Southard, the Supreme Court rejected in strong
terms the proposition that state legislatures might be able to control federal
procedure.59 In Wayman, Chief Justice Marshall, writing for the Court, stated
that the Necessary and Proper Clause gives Congress the power to regulate the
proceedings of the federal courts and that Congress may delegate that power to
the courts.60 Even if this were not the case, however, the Court considered it
“extravagant” even to consider that state legislatures might have the power to
control procedure in the federal courts.61
One of the primary purposes of having a system of federal courts is to
53. See City of Milwaukee v. Illinois, 451 U.S. 304, 313 (1981) (“When Congress has
not spoken to a particular issue, however, and when there exists a ‘significant conflict
between some federal policy or interest and the use of state law,’ the Court has found it
necessary, in a ‘few and restricted’ instances, to develop federal common law.”) (footnote
omitted) (citations omitted); Mortgages, Inc. v. U.S. Dist. Court for Dist. of Nev., 934 F.2d
209, 213 (9th Cir. 1991) (“[F]ederal courts may formulate federal common law in those
areas dominated by strong national or federal concerns such as controversies between states,
admiralty matters, or foreign relations.”).
54. S. Pac. Co. v. Jensen, 244 U.S. 205, 214-17 (1917).
55. Id.
56. Clearfield Trust Co. v. United States, 318 U.S. 363, 366 (1943).
57. Id. at 367.
58. See Barrett, supra note 36, at 838-40.
59. 23 U.S. 1, 49-50 (1825).
60. Id. at 21-22, 42-43.
61. Id. at 49.
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escape the self-serving bias that might be found in the state courts.62 The ability
of the federal courts to promote this purpose would be undermined if state
legislatures were able to control the procedures employed in the federal courts.
The federal structure of the Constitution simply does not contemplate a role for
state law in crafting federal procedure. The procedure of the federal courts,
therefore, is a matter for the federal government to regulate exclusively.63
Because this constitutional scheme does not contemplate state control of
federal procedure, in the absence of congressional action on the issue of a prelitigation duty of preservation, it is for the federal courts to fill the void.64
Under this theory, there is no reason why a rule that affects pre-litigation
conduct might be on less firm ground than procedural rules that regulate the
conduct of parties after litigation has commenced. Issues of pre-litigation
preservation implicate the same strong federal interests as those implicated by
the procedures of litigation itself. The effectiveness of the truth-seeking
mechanisms of the federal courts requires that the federal government be able
to regulate pre-litigation preservation duties. Thus, preservation duties are
central to the effective functioning of the federal courts as conceived by the
Constitution, and may fall within an area of intense national interest that the
Constitution contemplates is reserved for federal regulation.
D. Article III Grant of Power to the Federal Courts to Prescribe
Procedural Rules
Another possible source of the federal courts’ authority to prescribe rules
governing pre-litigation preservation lies in Article III of the Constitution. The
federal courts might have the power to create procedural law “simply because
Article III denominates them ‘courts’ in possession of ‘the judicial power.’”65
The theory that federal courts may create procedural rules because those rules
lie in an area of intense federal interest addresses the interests of the federal
62. See THE FEDERALIST, NO. 80 (Alexander Hamilton) (noting that among the
purposes of the federal courts is the resolution of disputes among the states and cases “in
which the State tribunals cannot be supposed to be impartial and unbiased”).
63. This does not mean that federal courts may never employ state-created procedure,
but only that they do so as a matter of federal common law. See infra Part III.B.
64. There is an area of procedure in which the federal courts are, in fact, supreme and
in which Congress cannot create rules contrary to those developed by the courts. See David
E. Engdahl, Intrinsic Limits of Congress’ Power Regarding the Judicial Branch, 1999 BYU
L. REV. 75 (1999) (asserting that the Constitution “preclude[s] legislation subverting the
judicial independence that is crucial to the justice our Constitution was designed to
establish”). Scholars disagree on the exact scope of this area of federal court procedural
supremacy. See Barrett, supra note 36, at 833-35. It is not necessary to try to resolve the
question of which branch has paramount authority to create a pre-litigation duty of
preservation, however, because Congress has not attempted to create a rule in this area.
65. Id. at 842; see also id. at 852-78 (providing historical arguments supporting the
proposition that Article III grants the federal courts inherent power to adopt procedural
rules).
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government as a whole, as seen in the federal structure of the Constitution, and
gives power to the courts to create rules because Congress has failed to do so
(or, in the context of procedure, because the judiciary is the branch with the
most expertise in the area). The theory that recognizes Article III as a source of
rulemaking power, however, focuses on the role and prerogatives of the judicial
branch in particular, and places emphasis on the separation of powers structure
of the Constitution.66
Professor Amy Barrett notes that there are two arguments in support of a
judicial power to regulate procedure stemming from Article III. The first is that
the authority to regulate procedure in the courts is part of the “judicial power”
with which Article III vests the Supreme Court and inferior courts.67 The
second argument says that, although this power is not explicitly given by the
Constitution, it is implicitly granted to the courts as a necessary corollary for
the implementation of judicial power.68
Regardless of the exact mechanism through which Article III grants the
federal courts the authority to adopt procedural rules, this authority may include
the power to adopt rules governing pre-litigation preservation. Under either
theory, the federal courts possess those powers that are necessary for the
exercise of the judicial power—that is, for the effective and efficient
adjudication of cases before the courts. The accurate and full presentation of
relevant evidence is necessary for the performance of the courts’ judicial
functions. Thus, the “judicial power” might include the power to ensure that
when a case comes before the court, all of the facts necessary to reach a just
disposition are available to the court.69 It makes more sense under this theory,
therefore, to think of the duty of preservation as a duty to the court to take
action that will later assist the court in duly executing its functions, rather than
as a duty to the opposing party. Because the preservation of evidence is
essential to the just resolution of cases and the performance of the courts’
66. This theory explains why congressional, as opposed to judicial, regulation of some
areas of procedure may be limited. See supra note 64; Michaelson v. United States ex rel.
Chi., St. Paul, Minneapolis & Omaha Ry. Co., 266 U.S. 42, 65-67 (noting that there are
limits on Congress’s power to modify the courts’ contempt power).
67. Barrett, supra note 36, at 847.
68. Id. at 847-48. Cf. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819)
(“We admit, as all must admit, that the powers of the government are limited, and that its
limits are not to be transcended. But we think the sound construction of the constitution [sic]
must allow to the national legislature that discretion, with respect to the means by which the
powers it confers are to be carried into execution, which will enable that body to perform the
high duties assigned to it, in the manner most beneficial to the people.”).
69. Article III provides that “[t]he judicial power shall extend to all cases.” U.S.
CONST. art. III (emphasis added). One might make the textual argument that this language
limits the courts’ power to proceedings already in the courts—that is, current or pending
cases. However, the same reasoning discussed in the text could be used to dispose of this
argument. The “judicial power” over a case might, of necessity, arise even before the case is
filed, either because of the fact that the case later is filed in (or removed to) the federal courts
or because that case could potentially reach the federal courts later.
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judicial functions, Article III may vest the federal courts with an inherent
power to regulate the duty to preserve evidence, both before and after litigation
formally begins.
E. Sources of Authority: Conclusions
This Part has considered four possible sources of authority to prescribe a
pre-litigation rule of preservation. Because the courts have not promulgated
such a rule in conformance with the Rules Enabling Act, that statute cannot
justify the courts’ exercise of this power. The courts are supported in their
creation of a pre-litigation duty of preservation by their power to create
common law interpreting and effectuating validly-prescribed Federal Rules,
however. They might also claim power to create a rule in the absence of
congressional action in this area because this subject matter is one relegated by
the constitutional structure to federal control. Finally, in creating pre-litigation
duties of preservation, federal courts may be able to rely on the judicial power
vested in them by Article III.
As noted already, courts have justified their actions in this area by citing a
court’s “inherent power to regulate litigation, preserve and protect the integrity
of proceedings before it, and sanction parties for abusive practices.”70
However, courts have not identified the nature of this inherent power. It is most
likely that the inherent power that the federal courts contemplate is one that
arises from the judicial power vested in them by Article III.
This Article III-based theory of judicial power comports with courts’
citation to Chambers because there the Supreme Court notes that “[t]he
imposition of sanctions . . . transcends a court’s equitable power concerning
relations between the parties and reaches a court’s inherent power to police
itself.”71 Additionally, the Court notes that “‘[c]ertain implied powers must
necessarily result to our Courts of justice from the nature of their institution,’
powers ‘which cannot be dispensed with in a Court, because they are necessary
to the exercise of all others.’”72 This discussion of the inherent powers of the
court aligns most closely with the theory that courts derive certain powers from
Article III by virtue of their being established as courts with “judicial power.”
The Court in Chambers spoke of the importance of the courts’ inherent powers
with regard to the institution of the courts themselves. The Court did not
believe that these were inherent powers vested in the federal government by
reason of the federal structure of the Constitution, but rather were powers
vested with the courts by reason of the nature of that institution.
To the extent that federal courts merely cite a transcendent “inherent
70. Capellupo v. FMC Corp., 126 F.R.D. 545, 551 (D. Minn. 1989).
71. Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991).
72. Id. at 43 (alteration in original) (quoting United States v. Hudson, 11 U.S. (7
Cranch) 32, 34 (1812)).
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power” to create common law in this area, they fail to justify adequately their
exercise of power. In McCulloch v. Maryland, Chief Justice Marshall
emphasized that the government has no inherent powers—it was created by the
people and it “deriv[es] its powers directly from them.”73 However, federal
courts have a number of theories on which they can rely that account for a
positive grant of power to create a pre-litigation duty to preserve relevant
evidence. Despite the fact that this duty targets pre-litigation conduct, the
theories for judicial power in this area do not foreclose common law rules that
apply before litigation commences in the federal courts.
III.
THE CHOICE BETWEEN FEDERAL AND STATE PRESERVATION LAW
Concluding that the federal courts have the power to create a pre-litigation
duty of preservation and corresponding sanctions for breach of that duty does
not end the inquiry as to what law the federal courts should apply. In diversity
cases, federal courts must ask whether Erie requires them to apply state
preservation law. Even in cases arising under federal law, federal courts might
adopt state law by incorporation in order to ensure uniformity between the
federal and state courts.
Not all states impose a duty on parties to preserve relevant evidence from
the time that litigation is reasonably foreseeable. In Florida, for instance, at
least some state courts have held that there is no duty to preserve evidence until
litigation actually arises and have rejected a “common law duty to preserve
evidence before litigation has begun.”74 In other states, although the trigger of
the duty to preserve might be the same as that under the prevailing federal
common law, there is variance in terms of what sanctions may be imposed for
spoliation. In Large v. Mobile Tool International, Inc., the District Court for the
Northern District of Indiana considered the application of harsher spoliation
sanctions under federal law, even though state law may have “preclude[d] any
sanction greater than an evidentiary inference and the associated jury
instruction.”75 Given differences between federal common law and state law,76
federal courts must consider whether the federal common law can properly be
73. McCulloch, 17 U.S. (4 Wheat.) at 404.
74. Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So. 2d 843, 845-46 (Fla. Dist.
Ct. App. 2004); see also Gayer v. Fine Line Constr. & Elec., Inc., 970 So. 2d 424, 426 (Fla.
Dist. Ct. App. 2007) (“Because a duty to preserve evidence does not exist at common law,
the duty must originate either in a contract, a statute, or a discovery request.”).
75. Large v. Mobile Tool Int’l, Inc., No. 1:02cv177, 2008 WL 2116967, at *6 (N.D.
Ind. May 20, 2008).
76. See ADVISORY GROUP TO THE NEW YORK STATE-FEDERAL JUDICIAL COUNCIL,
HARMONIZING THE PRE-LITIGATION OBLIGATION TO PRESERVE ELECTRONICALLY STORED
INFORMATION IN NEW YORK STATE AND FEDERAL COURTS 23-27 (2010), available at
http://www.courts.state.ny.us/publications/pdfs/PreLitReport.PDF (discussing conflicts
between New York state and federal law regarding pre-litigation preservation of
electronically stored information).
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applied in cases arising under the courts’ diversity jurisdiction, and what the
substance of the federal common law should be in federal question cases.
A. The Application of Federal Preservation Law in Diversity Cases
Before applying a federal preservation rule in a case arising under the
court’s diversity jurisdiction, a federal court must determine that doing so will
not run afoul of Erie’s lesson that a federal court is bound by state common law
just as it is bound by state statutory law.77 The federal courts generally have not
considered whether Erie dictates the application of state preservation and
spoliation law. Rather, where they have given any justification for their
application of federal law, they rely on broad assertions that spoliation is an
evidentiary issue and that “federal courts generally apply their own evidentiary
rules in both federal question and diversity matters.”78 The federal courts have
sometimes compared application of federal law in this area to their application
of the Federal Rules of Evidence in diversity cases.79 However, very different
standards apply when a court considers the application in a diversity suit of a
validly enacted law like the Federal Rules of Evidence on the one hand, and
judge-made federal common law on the other.80 The federal courts are
mistaken merely to assume that federal preservation law applies in diversity
cases.
The Supreme Court’s current understanding of the Erie doctrine is most
clearly laid out in Hanna v. Plumer.81 In Hanna, the Court held that a federal
court must apply any valid controlling federal statute or federal rule.82 The
Court went on to explain, in dictum, that if no federal statute or federal rule
applies, the federal court must apply an outcome-determination test, asking
whether the application of federal law would materially affect the character or
result of litigation.83 The court’s application of this outcome determination test
is to be guided by the twin aims of Erie: “discouragement of forum-shopping
and avoidance of inequitable administration of the laws.”84 A federal court
77. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
78. Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir. 2009).
79. See, e.g., Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005)
(noting that the court’s application of federal law concerning the spoliation of evidence “is
consistent with the law of our circuit regarding the rules of evidence, where we have held
that, ‘in diversity cases, the Federal Rules of Evidence govern the admissibility of evidence
in the federal courts.’”) (quoting Johnson v. William C. Ellis & Sons Works, Inc., 609 F.2d
820, 822 (5th Cir. 1980)).
80. See Hanna v. Plumer, 380 U.S. 460, 473-74 (1965) (“Erie and its offspring cast no
doubt on the long-recognized power of Congress to prescribe housekeeping rules for federal
courts even though some of those rules will inevitably differ from comparable state rules.”).
81. Id.
82. Id. at 473-74.
83. Id. at 467.
84. Id. at 468.
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need only apply state law where doing so would further these two goals.
As discussed above, the federal law regarding the pre-litigation duty to
preserve evidence is not codified in a law or in the Federal Rules of Civil
Procedure, but is a judge-made common law rule. Therefore, the federal
obligation of preservation creates an Erie question to be analyzed under the full
analysis laid out by Hanna’s dictum. The application of the federal law of
preservation may, in some cases, materially affect the outcome of a case.
Spoliation sanctions may be as severe as granting summary judgment for the
party disadvantaged by the spoliation. If a federal court finds that a party
breached its duty of preservation where a state court would have found no such
duty, or if a federal court imposes a stricter sanction on a spoliating party than a
state court would have, that application of federal law may change the outcome
of a case.
Furthermore, the application of federal common law in this context may
lead to forum shopping. A plaintiff who suspects that a defendant has destroyed
evidence that may be relevant to litigation has an incentive to file his lawsuit in
the forum that recognizes such destruction as spoliation and that punishes it
most severely. A defendant considering whether to remove an action to federal
court would likely consider whether doing so may leave itself or the plaintiff
liable for spoliation sanctions.
The application of federal preservation law may also, in certain
circumstances, result in the inequitable administration of the laws. Generally, if
more relevant evidence is preserved, a court is more likely to reach a just and
equitable resolution of the claims. To the extent that federal preservation laws
are stricter in requiring the preservation of evidence, the application of a federal
preservation rule might push litigation toward a more equitable resolution.
However, federal preservation rules may also be more lenient than state
preservation law. In that case, the application of a federal rule might allow a
party that has breached the state duty of preservation to prevail on state law
claims where it would not have done so had the litigation been located in state
court. A more lenient duty of preservation will generally benefit the party that
controls more evidence—in state law tort actions, often the defendant. The
application of a federal rule of preservation may run afoul of Erie, therefore, by
materially changing the result of litigation in a manner that will lead to forum
shopping and, in some circumstances, the inequitable administration of the
laws.
A federal rule may nevertheless be warranted, however, if “affirmative
countervailing considerations” dictate the application of a federal standard.85 In
85. Byrd v. Blue Ridge Rural Elec. Co-op, Inc., 356 U.S. 525, 537 (1958). It is unclear
whether Byrd continues to have vitality after Hanna v. Plumer. Since Hanna, the Supreme
Court has only discussed Byrd in any depth in Gasperini v. Ctr. for Humanities, Inc., 518
U.S. 415, 431-36 (1996). Even in Gasperini it is not clear that Byrd was essential to the
Court’s holding. If Byrd is no longer good law, of course, then the argument is even stronger
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Byrd, the Supreme Court resisted the application of a state rule that would have
“disrupt[ed] the federal system of allocating functions between judge and
jury.”86 This distribution of trial functions constituted an “essential
characteristic” of the “independent [federal] system for administering justice to
litigants who properly invoke its jurisdiction.”87 Rules of preservation and
sanctions for spoliation may constitute an “essential characteristic” of the
federal judicial system. Such rules intimately affect the just resolution of cases
brought in the federal courts. There may be strong countervailing federal
interests, therefore, against application of state preservation rules that
undermine these aspects of the federal system.88 However, the determination of
whether a state rule does undermine the strong federal interest in ensuring that
evidence is preserved for litigation should probably be made on a case-by-case
basis depending on the particular state rule to be applied.
The foregoing discussion makes clear that the application of federal
preservation and spoliation law in diversity cases is not a simple matter. Erie
seems to counsel for the application of state law in this area because having a
different rule in federal courts is likely to affect the outcome of litigation and
result in forum shopping and the inequitable administration of justice. The
determination that there are countervailing interests that require that federal
preservation rules be applied should be made on a case-by-case basis after an
inquiry into the nature of the particular state law that the federal court is
considering. By uniformly applying a federal law of preservation, federal courts
have not been living up to the principles of Erie.
B. The Incorporation of State Law as Federal Common Law
Even after Erie, federal courts properly apply federal procedural common
law in federal question cases and, in certain instances, in diversity jurisdiction
cases. However, in deciding the content of the federal common law to be
applied in these cases, federal courts often consider “adopting, as the federally
prescribed rule of decision, the law that would be applied by state courts in the
State in which the federal diversity court sits.”89 Federal courts should consider
that the federal courts should apply state preservation law.
86. Byrd, 356 U.S. at 537.
87. Id.
88. Cf. Hoffman v. CSX Transp., Inc., No. 1:04CV293, 2006 WL 38954, at *3 (S.D.
Ohio Jan. 5, 2006) (holding that under Erie state spoliation doctrine applies “unless the
spoliation issue clearly implicates an overriding federal rule or interest”), abrogated by
Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir. 2009).
89. Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508-09 (2001) (holding
that the federal rule governing the preclusive effect of a dismissal by a federal court sitting in
diversity should be “the law that would be applied by state courts in the State in which the
federal diversity court sits”); see also De Sylva v. Ballentine, 351 U.S. 570, 580 (“The scope
of a federal right is, of course, a federal question, but that does not mean that its content is
not to be determined by state, rather than federal law.”); Paul J. Mishkin, The Variousness of
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applying state law governing pre-litigation duties of preservation and spoliation
sanctions for breach of that duty, even in cases arising under federal law.
In United States v. Kimbell Foods, Inc., the Supreme Court held that
federal law governs the priority of liens arising from federal lending
programs.90 However, the Court noted that this did not necessarily mean that
the matter would be governed by uniform federal rules; “judicial policy” might
require the federal courts to adopt state law as the rule of decision.91 In making
this choice, the Court held that a federal court has to consider whether the
governmental interests at stake require a nationally uniform body of law,
whether the application of state law would frustrate federal interests, and
whether the application of a federal rule would disrupt expectations formed on
the basis of state law.92 In Kimbell Foods itself, the Court decided that a
uniform rule was not necessary for the effective administration of the federal
programs concerned and that incorporation of state law would not harm federal
interests.93 Given the significant reliance interests of the business community
that were predicated on state law, the Court held that the “prudent course is to
adopt the readymade body of state law as the federal rule of decision until
Congress strikes a different accommodation.”94 Indeed, the prevailing
presumption is that federal courts should borrow state law as federal law absent
a demonstrated need for a federal rule of decision.95
Rather than incorporating state law, federal courts have crafted a federal
standard that governs the pre-litigation duty of preservation. Despite a
presumption that courts should do so, the courts have not considered
incorporating and applying state law as federal common law on this issue. One
possible exception is the Court of Appeals for the Eleventh Circuit, which has
held that a court’s application of federal law in this area is to be “informed by”
state law.96 In that circuit, therefore, in applying federal common law
governing pre-litigation preservation, a federal court takes into account any
duties that might be imposed by state law and any expectations of the parties
that might rely on that law.97 Even in the Eleventh Circuit, however, federal
“Federal Law”: Competence and Discretion in the Choice of National and State Rules for
Decision, 105 U. PA. L. REV. 797, 802-04 (1957) (“The power to choose [the governing law]
may also be exercised by adopting state law as the governing rule—by incorporating the
local rules for decision as the ‘federal law’ for this purpose.”).
90. 440 U.S. 715, 726 (1979).
91. Id. at 728.
92. Id. at 728-29.
93. Id. at 729-38.
94. Id. at 739-40.
95. RICHARD H. FALLON, JR., ET AL., HART AND WECHSLER’S THE FEDERAL COURTS
AND THE FEDERAL SYSTEM 628 (6th ed. 2009).
96. Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005).
97. See, e.g., In re Elec. Mach. Enters., Inc., 416 B.R. 801, 874 (Bankr. M.D. Fla.
2009) (holding that “[i]n light of” the fact that in the Eleventh Circuit “a determination of
whether to impose spoliation sanctions must be ‘informed by’ state law . . . this Court cannot
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courts do not directly incorporate state law into federal law. Courts have not even
considered the factors the Supreme Court laid out in Kimbell Foods.
1. Uniformity
The first factor that the Supreme Court considered in Kimbell Foods when
deciding whether to incorporate state law into the federal rule was whether there
was a need for a “nationally uniform body of law.”98 A uniform national spoliation
standard would aid parties who are not sure where they might be sued. A company
doing business across state lines or an individual who travels throughout the United
States may not always be able to predict where an action will be brought against
him or where he may later desire to bring an action. In determining what evidence
the party needs to preserve, a uniform national standard would help the party
predict the consequences of its handling of evidence. On the other hand, because
state courts would continue to apply their own state preservation law, the benefits
of uniformity across federal courts would largely be eroded by nonuniformity
among the state courts and between the state and federal courts.99 Because it is
impossible to achieve both vertical uniformity (application of the same standard in
a federal court and a court of the state in which it sits) and horizontal uniformity
(application of the same standard across different states) the argument that a
uniform national spoliation standard is necessary in the federal courts is not
compelling. In this instance, a national standard in the federal courts would not
provide an assurance of true uniformity.
justify imposing sanctions for actions taken at a time when the parties were under no duty to
preserve evidence under Florida law.”). In re Electric Machinery Enterprises was a rare
opinion in which the court held that because state law did not create a pre-litigation duty of
preservation, it would not sanction breach of the federal duty to do so. However, even the
bankruptcy court in that case did not cite to any other cases where a court had held similarly,
demonstrating just how rare this holding is.
98. Kimbell Foods, 440 U.S. at 728.
99. Most federal common law is applicable in both federal courts and state courts.
Thus, federal common lawmaking can usually ensure both vertical and horizontal
uniformity. The bases of authority discussed above that might give federal courts the power
to make common law regarding pre-litigation spoliation, however, suggest that this is a
procedural issue wherein the federal common law would only govern in suits in the federal
courts: because the Federal Rules of Civil Procedure only apply in federal proceedings,
common law in the interstices of the Rules must be similarly limited in its application; the
federal structure of the Constitution suggests an intense federal interest only in regulating the
proceedings of the federal courts; and the judicial power vested by Article III in the federal
courts can only give them power to regulate their own judicial proceedings, not the
proceedings of another system of courts. Congress certainly has authority to prescribe a
national rule for preservation that would be applicable in all cases arising under federal law
both in federal and state courts. Because of the effects of preservation standards on
corporate litigants, the Commerce Clause may also give Congress the power to regulate
preservation in cases arising under state law. Absent congressional action on the matter,
however, horizontal nonuniformity in the state courts is almost inevitable both in cases
arising under federal law and cases arising under state law.
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2. Federal Interests
There are significant federal interests that suggest that a federal court might
apply a distinct federal spoliation rule rather than incorporate state law by
reference. The application of a federal standard may be necessary to ensure the
integrity of the judicial process, which might be threatened by discovery abuse.
In Semtek, the Supreme Court suggested in dictum that a state law that fails to
sanction discovery abuse properly would be “incompatible with federal
interests.”100 “If, for example, state law did not accord claim-preclusive effect
to dismissals for willful violation of discovery orders, federal courts’ interest in
the integrity of their own processes might justify a contrary federal rule.”101 If
state spoliation law allows litigants to manipulate the judicial system, either
because state law does not create a duty of preservation that begins at an
appropriately early juncture, because the scope of the state preservation duty is
too narrow, or because state law does not allow for severe enough sanctions to
deter or remediate spoliation, federal interests might necessitate the application
of a unique federal standard.
Federal courts have relied on this federal interest in creating federal
spoliation law. The Court of Appeals for the Fourth Circuit explained that
“[t]he policy underlying th[e] inherent power of the courts [to regulate
preservation] is the need to preserve the integrity of the judicial process in
order to retain confidence that the process works to uncover the truth.”102 The
judicial process relies on the good faith presentation of all relevant available
evidence. “The courts must protect the integrity of the judicial process because,
‘[a]s soon as the process falters . . . the people are then justified in abandoning
support for the system.’”103 Although states may prescribe spoliation law to be
applied in their own courts, federal courts are responsible for ensuring that the
federal common law that they apply upholds the integrity of the federal court
system.
Although there may be a strong federal interest in ensuring that the
applicable spoliation law serves to uphold the integrity of the courts, this does
not necessarily suggest that federal courts should create a federal standard to be
applied in every case. Rather, the federal courts should apply state law by
default, and only when that law fails to safeguard federal interests sufficiently
should they apply the federal standard.104 Where the need for national
100.
101.
102.
103.
Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 509 (2001).
Id.
Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001).
Id. (alterations in original) (quoting United States v. Shaffer Equip. Co., 11 F.3d
450, 457 (4th Cir. 1993)).
104. See United States v. Little Lake Misere Land Co., 412 U.S. 580, 596-97 (1973)
(“The Court in the past has been careful to state that, even assuming in general terms the
appropriateness of ‘borrowing’ state law, specific aberrant or hostile state rules do not
provide appropriate standards for federal law.”) (emphasis added).
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uniformity does not suggest that federal courts should create a unique federal
standard, the selective application of a federal standard strikes the proper
balance between protecting the federal interests at stake and upholding reliance
interests predicated on state law.
3. Reliance Interests and Vertical Uniformity
The third factor that the Kimbell Court suggested that a federal court
should consider before creating unique federal common law is the presence of
justified expectations predicated on state law.105 Because the creation of a
federal preservation standard would not preempt the application of state
preservation law in state court, these reliance interests might be particularly
threatened by the prospect of vertical nonuniformity—that is, the application of
different law in a federal court and in a court of the forum state. A party that
foresees litigation often may not know the forum in which it will litigate. A
plaintiff may file a claim in state court and later find that his claim is subject to
removal to federal court. A defendant may or may not know that it can remove
a case filed against it to federal court. The possibility of removal may depend
on the plaintiff’s theories in the case or the amount in controversy, which may
not be clear at the time that parties first foresee the possibility of litigation.106
Given that parties may not always know what forum they will be litigating in, it
may be more equitable for federal courts to adopt state preservation
standards.107
The law governing the pre-litigation duty of preservation implicates
significant commercial interests. In an age of electronically stored information,
the amount of material that could become subject to a duty to preserve is
staggering. Companies scared of losing a big case because of an adverse
inference or other spoliation sanction may expend huge amounts to preserve all
potentially relevant documents.108 These preservation problems are aggravated
105. See United States v. Kimbell Foods, Inc., 440 U.S. 715, 739-40 (1979) (noting that
“businessmen depend on state commercial law to provide . . . stability”).
106. Cf. Alfred Hill, The Erie Doctrine and the Constitution, 53 NW. U. L. REV. 427,
561 (1958) (“It is often impossible to predict at the ‘primary’ or prelitigative stage of
business or economic activity who the parties to a possible controversy will be, how they
will be aligned in the controversy, and what their citizenship will be.”).
107. Litigants, of course, do not only face uncertainty with regard to whether they will
appear in federal court or state court. They also may not be sure before litigation is actually
filed which state they will be litigating in. It is true that the horizontal nonuniformity in this
area moderates the potential benefits of vertical uniformity. Nevertheless, the fact that a
party may have to consider multiple different state preservation laws does not imply that the
federal courts should create an additional standard with which the party will have to contend.
108. See Notes from the Mini-Conference on Preservation and Sanctions 2-4 (Sept. 9,
2011) available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/DallasMini
Conf_Materials/Notes%20from%20the%20MiniConference%20on%20Preservation%20and
%20Sanctions.pdf [hereinafter Mini-Conference Notes].
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in the pre-litigation context. Because there is not yet an adverse party, potential
litigants cannot negotiate about what documents they will undertake to
preserve.109 There is no judge to whom the parties can turn to issue a definitive
ruling about what efforts and expenses are required.110
There is scant reliable empirical data regarding the costs of preservation,
and in particular the cost of pre-litigation preservation.111 Anecdotal evidence,
however, suggests that these costs can be enormous. In August 2011,
Microsoft reported that it currently had in place 14,805 separate custodian legal
holds in 329 separate matters.112 This corresponded to several warehouses full
of documents.113 Only about one third of those litigation holds related to active
litigation—the rest constituted pre-litigation preservation of documents.114 At a
recent conference on preservation, one corporate general counsel described his
company’s efforts to preserve evidence in anticipation of litigation concerning
a matter.115 Because there was not yet an adverse party, the company could not
negotiate about these preservation issues.116 His company had already spent $5
million on preservation and was paying $100,000 per month to segregate and
preserve evidence for this potential litigation.117
Some of these pre-litigation costs of preservation could certainly be
minimized if parties had clear rules regarding the trigger of the duty to preserve
and what material was covered by that duty. Not only does this require that the
law be clear on the matter, however, but it also means that parties must know
what law to look to in determining the extent of their duty to preserve.
Although there will continue to be nonuniformity among state laws governing
preservation, if potential litigants know that federal courts will adopt state
preservation law, this may limit the number and variety of preservation
obligations that parties have to contend with. By the time litigation is
foreseeable, parties will often know the states in which the relevant transactions
took place and might be able to predict which state’s law might be invoked.
109. Id. at 2.
110. Id. at 6.
111. See Letter from Nicholas M. Pace and James N. Dertouzos, RAND Inst. for Civil
Justice, to David Campbell, Mark Kravitz, and Lee H. Rosenthal, Judicial Conference of the
U.S. 2-5 (Sept. 7, 2011) available at http://www.uscourts.gov/uscourts/RulesAndPolicies/
rules/DallasMiniConf_Empirical_Data/RAND%20Corporation.pdf (discussing the many
difficulties of collecting reliable data on the cost of preservation).
112. Letter from David M. Howard, Corporate Vice President, Deputy Gen. Counsel,
Microsoft Corp., to David G. Campbell, Chair, Advisory Comm. on Civil Rules, September
9, 2011 Committee Meeting on Preservation and Sanctions 3 (Aug. 31, 2011) available at
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/DallasMiniConf_Comments/Micr
osoft.pdf.
113. Id.
114. Id.
115. Mini-Conference Notes, supra note 108, at 2.
116. Id.
117. Id.
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Applying state preservation law as the federal rule of decision will keep federal
courts from penalizing parties that have lived up to their state preservation
duties but that may not have expected to be held to a federal standard. Parties
will be free to rely only on the state law governing preservation.
Given that divergent state preservation laws would continue to be applied
in state courts and thus would diminish the benefits of a uniform national
standard in the federal courts, federal courts should strongly consider
respecting reliance interests predicated upon state preservation law by
incorporating the state law as the federal rule of decision in this area.118 Where
the state standard is so lax that it undermines federal interests, federal courts
can apply a federal rule that will adequately protect those interests.
IV.
FEDERAL RULEMAKING AS AN ALTERNATIVE TO COMMON LAWMAKING
The federal standard governing the preservation of evidence before
litigation commences is currently a matter of judge-made common law. This
topic may be better addressed, however, through the rulemaking process.119
One of the primary complaints of practitioners who deal with issues of
spoliation is that the law is too inconsistent.120 The results of a recent survey by
the Sedona Conference of its membership showed that over half of respondents
believed the current state of the law provides adequate guidance as to the
circumstances that trigger a duty of preservation only “sometimes,” “rarely,” or
“never.”121 Over seventy percent of respondents reported that the law was clear
118. There is a stronger argument for the application of a federal preservation standard
in cases within the exclusive jurisdiction of the federal courts. In those cases, a uniform
federal rule might create predictability for litigants and the confounding factor of disparate
state standards may be irrelevant. Additionally, there might be a greater federal interest in a
federal preservation standard in these cases. Where there is concurrent state and federal
jurisdiction over a cause of action, the federal interest in preservation is contingent on the
suit being brought in federal court. Where there is exclusive federal jurisdiction over a cause
of action, however, the federal interest is no longer a contingent one (or, perhaps, it is only
contingent on suit being brought at all). Even in these situations, however, it may be the
case that one series of transactions has given rise to a number of possible causes of action.
Although one or more of those might be within the exclusive jurisdiction of the federal
courts, the transactions may have also given rise to state causes of action. In that case,
litigants will still be confronted with the burden of complying with varying state preservation
duties.
119. Hanna v. Plumer, 380 U.S. 460 (1965), makes clear that the Rules Enabling Act
allows the Supreme Court to do through rulemaking what it cannot do through common law.
Erie considerations do not apply where a federal rule dictates procedure. Id. at 469.
120. See Letter from Robert D. Owen to David G. Campbell, Chairman, Advisory
Comm. on Civil Rules, Restoring the Balance: An Expanded Proposal Concerning
Preservation 2-4 (Oct. 24, 2011) available at http://www.uscourts.gov/uscourts/Rules
AndPolicies/rules/DallasMiniConf_Comments/Robert_Owen_Adv_Comm_Submission_fina
l.pdf (“The current judge-made regimen produces different outcomes in different
jurisdictions, leading to confusion and unfairness.”).
121. The Sedona Conference, The Sedona Conference Working Group 1 Membership
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with regard to the subject matters of information to be preserved only
“sometimes,” “rarely,” or “never.”122 Counsel have called for “objective
guideposts” that will allow them to minimize the risk to their client in crafting
cost-effective preservation mechanisms.123
Under the current common law system, preservation law often differs
between different circuits, and even between different district courts.124 Parties
engaged in active litigation can seek a definitive ruling from a judge about their
duty to preserve. But prior to the commencement of such litigation, parties who
anticipate litigation are often forced to comply with the most stringent
standards to ensure that they are not subject to sanctions in whichever court
they end up. Prospective rulemaking, through the Federal Rules of Civil
Procedure, would help to clarify the duties imposed upon parties before
litigation is filed.
The Advisory Committee on Rules of Civil Procedure has been working on
some rule amendments that would address the topic.125 In September 2011, the
Discovery Subcommittee held a conference in Dallas to address issues related
to possible rulemaking concerning preservation and spoliation sanctions.126
One recurring question in the discussions of a possible amendment to the
Federal Rules is whether the Rules Enabling Act gives the Supreme Court and
the rulemaking committee the authority to make rules concerning pre-litigation
preservation. The rulemaking committee has focused on the substance of what
any amendment to the rules might look like, and has pushed off the question of
the Supreme Court’s authority to promulgate such a rule.127 An examination of
Survey on Preservation and Sanctions 33 (Sept. 1, 2011) available at
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/
DallasMiniConf_Empirical_Data/The%20Sedona%20Conference.pdf.
122. Id. at 42.
123. Mini-Conference Notes, supra note 108, at 5.
124. For instance, courts disagree on the exact moment at which litigation becomes
foreseeable enough that the duty to preserve is triggered. Compare Burlington N. & Santa
Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir. 2007) (“A spoliation sanction is proper
where (1) a party has a duty to preserve evidence because it knew, or should have known,
that litigation was imminent . . . .”), and Velocity Press, Inc. v. Key Bank, N.A., No. 2:09CV-520 TS, 2011 WL 1584720, at *2 (D. Utah Apr. 26, 2011) (“For future litigation to be
considered imminent, there must be ‘more than a mere possibility of litigation.’”) (quoting
Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 621 (D. Colo. 2007)),
with Hynix Semiconductor Inc. v. Rambus Inc., 645 F.3d 1336, 1347 (Fed. Cir. 2011)
(holding that the “the correct standard [is one] of reasonable foreseeability, without the
immediacy gloss” and that spoliation sanctions may be appropriate where litigation is
“reasonably foreseeable” even if “not imminent”).
125. See Committee on Rules of Practice and Procedure, Meeting of January 6-7, 2011,
Minutes, 16-17 available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/
Minutes/ST01-2011-min.pdf.
126. See Spencer, supra note 15, at 2021-31 (proposing a set of federal rules that would
address the trigger and scope of the duty to preserve evidence as well as the appropriate
sanctions for spoliation).
127. See id. at 16 (“There was . . . concern about the committee’s authority under the
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this issue indicates that these concerns are unfounded.
The Rules Enabling Act permits the Supreme Court to “prescribe general
rules of practice and procedure and rules of evidence for cases in the United
States district courts (including proceedings before magistrate judges thereof)
and courts of appeals.”128 This language seems to limit the rules to application
in cases already in the federal courts, precluding any rules purporting to govern
pre-litigation conduct. Although this conclusion seems to follow from a plain
reading of the Rules Enabling Act, Rule 27 serves as a counterexample to such
a conclusion.129 Rule 27 authorizes “[a] person who wants to perpetuate
testimony about any matter cognizable in a United States court” to enlist the aid
of the federal courts in doing so, even before an action is filed.130 Equity
jurisdiction had long allowed courts to entertain bills to perpetuate testimony
before the original Federal Rules of Civil Procedure were promulgated.131
Thus, Rule 27 was merely a codification of that long-standing practice.132
Although the validity of Rule 27 has never been challenged on the grounds that
it regulates proceedings before a claim is filed, after nearly seventy-five years
of use, Rule 27 is presumptively valid. Rule 27, therefore, seems to indicate
that the Rules Enabling Act was meant to allow the Supreme Court to create
rules in aid of cases that will later be filed in the federal courts, including a rule
governing duties of pre-litigation preservation.
The other limitation on the Supreme Court’s rulemaking power under the
Rules Enabling Act is that the “rules shall not abridge, enlarge or modify any
substantive right.”133 The test for whether a rule would violate this limitation
on the Supreme Court’s rulemaking power was set out in Sibbach v. Wilson &
Co.: “The test must be whether a rule really regulates procedure,—the judicial
process for enforcing rights and duties recognized by substantive law and for
justly administering remedy and redress for disregard or infraction of them.”134
A rule that establishes a pre-litigation duty of preservation is concerned with
the just administration of the law. The key here is that such a rule would be
directly related to the functioning of the courts, even though it would regulate
conduct that occurs before a claim is filed. Rules governing preservation are
not meant to regulate primary conduct, but to ensure that the courts are able to
Rules Enabling Act to address preservation obligations . . . . Nevertheless . . . the
subcommittee would move forward to draft a rule while the issue of the committee’s
authority remains under advisement.”).
128. 28 U.S.C. § 2072 (2006) (emphasis added).
129. See Spencer, supra note 15, at 2019-21 (suggesting that Rules 11 and 65 also give
federal courts authority to regulate pre-litigation conduct).
130. FED. R. CIV. P. 27(a)(1).
131. See Arizona v. California, 292 U.S. 341, 347 (1934) (“Bills to perpetuate
testimony had been known as an independent branch of equity jurisdiction before the
adoption of the Constitution.”).
132. FED. R. CIV. P. 27 advisory committee’s note.
133. 28 U.S.C. § 2072(b) (2006).
134. Sibbach v. Wilson & Co., 312 U.S. 1, 14 (1941).
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administer just remedy for the violation of substantive duties. Sibbach’s
interpretation of the Rules Enabling Act accords no weight to the fact that
preservation obligations might be “substantive” in the sense that they are
expensive. The current understanding of the Rules Enabling Act, therefore,
would allow for the Supreme Court to promulgate a Federal Rule governing
pre-litigation preservation. Promulgating such a Rule would create a
predictable, consistent standard that could be applied across the federal courts.
CONCLUSION
Federal courts have relied on their inherent power to regulate litigation to
create federal common law rules governing the pre-litigation duty to preserve
evidence and sanctions for breach of that duty. Courts have not adequately
supported their claim to such inherent power, particularly given that they seek
to regulate behavior that occurs before their jurisdiction is invoked by the filing
of a claim in federal court. Although courts have not sought to justify their
authority in this area, there are a number of possible sources of authority that
might give judges the power to impose a pre-litigation duty to preserve
evidence. The federal courts might properly regulate pre-litigation preservation
of evidence through their interstitial common lawmaking power, through their
power to create federal common law in enclaves of intense federal interest, or
through a power implicit in Article III’s grant of “judicial power.”
That federal courts might possess the power to create federal law in this
area in federal-question cases, however, does not mean that they possess that
power when sitting in diversity. The policies underlying Erie suggest that
federal courts should apply state preservation law in diversity cases. Even in
federal question cases, federal courts should consider adopting state law as the
federal rule of decision. The incorporation of state law may create some
measure of predictability for parties to potential litigation.
Ultimately, parties will be best served by predictable rules. If there is a
need for federal preservation law, therefore, the Judicial Conference should
continue its work crafting a Federal Rule that would create uniform and
objective standards that could be applied throughout the federal courts.
Although parties to potential litigation would still face multiple standards
because they might find themselves litigating in state court, a predictable
federal rule would ease some of the burden of complying with the duty of
preservation. In order to further a move toward uniformity, the Uniform Law
Commission might consider a project that would suggest a model preservation
law to be applied in state courts.
Until the Federal Rules of Civil Procedure give federal courts and litigants
more direction concerning the pre-litigation duty of preservation, federal courts
should reconsider their approach to the matter. Their current assertion of
lawmaking power in this area relies on an inapt analogy to federal evidentiary
rules. The federal courts should recognize that because preservation law affects
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important pre-litigation conduct, the courts should apply state law in this area,
and sometimes might be required to do so. Constraining federal law in this area
would better comport with principles of federalism and would likely be better
policy.